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Dissenting Opinion Reverberates Anew in Veterans Case

When he dissented, Supreme Court Justice David Souter, who served 1990-2009, tended to do it quietly. He rarely read a dissenting opinion from the bench, as fellow liberal Stephen Breyer increasingly does. He never engaged in hyperbole, as conservative Antonin Scalia has (e.g., Scalia said the 2009 Boumediene decision “will almost certainly cause more Americans to be killed”). Yet several of Souter’s dissents endure, notably his 2007 protest in Bowles v. Russell, which will be back before the justices this week.

On Monday the Supreme Court will hear a case that tests a 120-day deadline for wounded veterans to appeal denial of Veterans Affairs benefits (my story setting up the case of Henderson v. Shinseki is here). The new case goes directly to the scope of Bowles v. Russell, in which a five-justice conservative majority said judges could not bend certain deadlines set by Congress, no matter how compelling the situation. The majority opinion by Justice Clarence Thomas rejected arguments from a prisoner who had filed an appeal a few days late because of erroneous instructions from a judge. Souter, joined by three liberals, wrote “It is intolerable for the judicial system to treat people this way.”

The new case is more sympathetic, involving not a convicted murderer but a Korean War vet, David Henderson, who was 100 percent disabled with paranoid schizophrenia from his service. The case began after the VA denied his 2001 request for monthly compensation related to home care. Henderson was then shut out of Veterans Court review because he was 15 days late in filing an appeal. His lawyers say he was late because of the very illness for which he was seeking benefits. Justice Department lawyers counter that the deadline is firm and that vets are made aware of the time limit.

When the U.S. Court of Appeals for the Federal Circuit ruled 9-3 against Henderson last year, it said it was bound by Bowles v. Russell and firm deadlines. Dissenting judges, led by Haldane Robert Mayer, said that reliance was wrong because of the distinct veterans context. “No legal system can function without deadlines, but the majority’s eradication of equitable tolling in proceedings before (the Veterans Court) creates a Kafkaesque adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain them.”

Judge Mayer highlighted Souter’s (“it is intolerable”) dissent and then added a few memorable words of his own: “The facts here are far more compelling. Bowles was a convicted murderer, and had a jury trial, a direct appeal and a federal district court review of his habeas application. … Acting (without a lawyer), Henderson filed an action challenging the (VA) board’s decision denying him monthly compensation for at-home care, but his complaint was dismissed because it was filed a mere fifteen days outside the 120-day filing period… . … So while Bowles, a convicted murderer, had several opportunities to present his case in a court of law, Henderson will have none.”

That was written in December 2009. Henderson has since died (on October 24 of this year). His appeal is being carried on by his wife, Doretha.